A newly decided case, Glowacki ex rel v. Howell Public School Dist., 2013 WL 3148272 (E.D. Mich. 2013), involves the tension between preventing bullying in school and respecting students' free speech rights. During Anti-Bullying Day at Howell High School, plaintiff was thrown out of a teacher’s classroom for saying, among other things, “I don’t accept gays.” The plaintiff sought an injunction and declaratory relief against defendant, alleging a violations of the First Amendment.

Relying on Tinker v. Des Moines, the court held that the plaintiff’s comments were protected by the First Amendment’s Free Speech Clause, as they were an expression of his opinion rather than harassing behavior directed at other students. The court rejected the teacher's claim of qualified immunity for the claims against him personally, but held that the school district was not liable for the teacher's violation of the student's rights because the district's "policies comport with the school speech standard set forth in Tinker and are therefore constitutional. At most, the School District negligently adopted a policy that posed a risk to the First Amendment rights of its students and negligently failed to provide training on the intersection of anti-bullying policies and the First Amendment.” But the court found that the plaintiffs' allegations were devoid of facts indicating that the district was negligent in training its teachers.

The case is also interesting for its substance and because it cites to one of our colleagues in regard to its analysis of whether the student's speech was protected. The relevant section reads as follows:

There is no indication from the evidence here that the negative comments Daniel made about homosexuality threatened, named, or targeted a particular individual or, for that matter, that Daniel even knew that there was a homosexual student in his economics class. (McDowell Dep., McDowell's Mot. Summ. J. Ex. B, at 80:13–17.) Given that the speech did not identify particular students for attack but simply expressed a general opinion—albeit one that some may have found offensive—on the topic of homosexuality, the Court finds that Daniel's expressive conduct did not impinge upon the rights of other students. See generally Emily G. Waldman, A Post–Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 J.L & Educ. 463, 468–69, 499–503 (2008) (suggesting a framework for analyzing potentially hurtful student speech by asking whether the speech was directed at a particular individual, and if not, assessing the impact of such speech on the educational performance of students hearing the speech).

For those who read in full, you will see that it broaches serious issues and one could query the extent to which the student's behavior could be interpretted was to do more than just express his opinion, but I will leave it to Professor Waldman to tell us whether the court applied her principle correctly. Regardless, Kudos to Professor Waldman, who shows that our scholarship is relevant both in the classroom and in court.

For those interested in knowing a little more about Professor Waldman's article, she shared, at my request, the following explanation:

My article suggested that, in analyzing whether potentially hurtful student speech warrants protection, courts should distinguish between (1) speech that identifies particular students for attack and (2) student speech that is primarily commenting on a political, social, or religious issue. I argued that schools should have broad rein to restrict the first category, but should only be able to restrict speech in the second category when there is a real likelihood that the speech will substantially disrupt the education of at least one other student. I was very pleased to see that the district judge in this case found this distinction helpful.

With all of the Supreme Court cases coming down this week, I have been slow to post the Stanford Center for Research on Education Outcome's (CREDO) new charter school study, but it should not get lost in the shuffle. For those who have not followed the debate over the last several years, CREDO has published some of the most comprehensive and influential studies on charter school achievement available. I will save in-depth analysis for next week. For now, it suffices to say that CREDO's previous 2009 report painted a relatively poor pictures of charter schools and was fodder for those who oppose them. I admit that I have placed great weight in the 2009 study's less than flattering results for charter schools. This new study, however, presents an envolving picture.

While charters still do not consistently outperform traditional public schools (as some believe), this study indicates that, on the whole, charter schools have shown improvement since 2009, ineffective ones have begun to close, and that a larger number than before are outperforming traditional public schools. In addition, the study suggest that the popular notion that charters steal all of the top students is probably incorrect as a general principle. With that said, I will let the report speak for itself. Here are some of the most important findings:

"Charter schools and their feeder schools are educating more disadvantaged students than in 2009."

"[T]his study cannot address the question of whether charter schools manipulate their recruitment to obtain more academically prepared students, known as cream-skimming. . . . What we can say, however, is that the demographic trends since the earlier report point to more challenging students, not less, which would run counter to the notion of selectivity onprior education performance."

"The analysis of charter schools in the original 16 states covered in the 2009 report shows that they have maintained or slightly increased their impact on student learning in the intervening years. The rise in average student growth across the continuing schools is due in no small part to the closure of low-performing schools, which amounted to about 8 percent of the 2009 sample of schools."

"The 27 states in our study provide the widest angle view of the charter school sector to date. Across multiple measures, the students in these charter schools have shown both improved quality over the results from 2009 and an upward trend in their performance over the past five years. Compared to their likely TPS [(Traditional Public School)] alternative, the average charter school student now gains an additional 8 days of learning each year in reading, compared to a loss of 7 days each year in the 2009 report. In math, students in 2009 posted 22 fewer days of learning; today, charter school students have equivalent levels of learning in math as their TPS peers."

"As with the 2009 report, the amount an average charter student learns each year varies widely across states. . . . In reading, charter school students on average have significantly stronger growth than TPS students in 16 of the 27 states evaluated. Reading growth was weaker for charter students in eight states and similar in three states. In math, 12 state charter sectors had stronger growth than TPS, 13 states had weaker growth, and two had growth that was similar to TPS."

"While much ground remains to be covered, charter schools in the 27 states are outperforming their TPS peer schools in greater numbers than in 2009. . . . [A] quarter of charter schools outperform their local TPS alternatives in reading, and 29 percent do so in math. The figure from 2009 was 17 percent of schools with stronger gains in math and 37 percent with smaller gains than the comparison TPS performance. And the share of charter schools that produced inferior outcomes compared to their local TPS has declined to 19 percent of schools in reading and 31 percent in math. "

Francis X. Shen (Minnesota) challenges the view that
citywide referenda alone are an effective means of ensuring accountability for
mayoral control of urban school districts. From Professor Shen’s abstract on SSRN:

Secretary of Education Arne Duncan has encouraged more
mayors to take charge of their urban schools districts. Central to debates over
mayoral control is the use of a citywide referendum to legitimize mayoral
control. Voters in Boston and Cleveland supported mayoral control, while in
Detroit voters chose to return to an elected school board. Through new
empirical analysis of the referenda results in Boston and Cleveland, the
article shows that rather than establish genuine democratic legitimacy, the
referenda in fact mask strong class-based, and in Boston, race-based opposition
to the reform strategy. Legislatures considering mayoral control would do well
to think carefully before adopting a referendum as the only or primary solution
to the mayoral control accountability dilemma. A referendum in and of itself is
not a satisfactory safeguard to ensure the participation of urban minorities
and poor residents in urban education reform discussions.

The emergence of For-Profit Colleges and Universities
(FPCUs) presents an interesting paradox: FPCUs, rather than traditional
non-profit and public institutions, are becoming a de facto path for many
vulnerable students: low socioeconomic-status students, underrepresented
minorities, first generation college students, non-traditional adult students,
and veterans. Federal government funding has accelerated the migration of
vulnerable students to FPCUs. This migration reveals a shortcoming associated
with portable financial aid in the existing regulatory environment:
ill-informed vulnerable students selecting educational options that
differentially empower them. Although FPCUs provide access to vulnerable
student populations, the existing regulatory framework, when combined with
market forces, does not at present, adequately protect federal dollars,
students, or address broader societal issues, such as higher education
stratification.

Education at a Glance 2013: OECD Indicators was released yesterday by the international economic group, the Organisation for Economic Co-operation and Development. OECD compares annual quantitative indicators of quality education in 34 countries. The 2013 edition “offers a snapshot of how people who participate in and benefit from education, fared during the worst economic crisis seen in decades.” U.S. public education funding dropped one percent between 2008 and 2010; the U.S. was one of five countries in the world to decrease public education spending during those years (joining Estonia, Hungary, Iceland, and Italy). Across all levels of education, annual per-student spending by educational institutions in the United States was higher than in any other country (U.S. Country Report, U.S. p. 4), but most of that spending was on higher education (the United States spends twice as much of its GDP (2.8%) on higher education than the international average (1.6%)). Although the U.S. spends more than every other country on higher education, a larger-than-average proportion of that money comes from private sources. Read the United States country note here and the full report here.

Guest blogger Danielle Holley-Walker recently discussed the troubled Philadelphia school district in Education Law Prof (School Closings, Charter School Growth, and the Debate over Their Connection, June 18, 2013). Yesterday, the Education Law Center advocacy group announced that it may sue to challenge funding disparities in Philadelphia’s school district. Executive director Rhonda Brownstein told NBC10 Philadelphia that the center is waiting to see how much of Pennsylvania’s $11.7 billion education budget will be allocated to relieve Philadelphia’s budget shortfalls. Brownstein acknowledged that suing would be difficult because of state supreme court precedent that defers to the legislature on education funding issues. Law professor Bruce Ledewitz (Duquesne) said that prior precedent could make an education funding lawsuit “dead on arrival” unless a court accepts a theory that the budget cuts will effectively shutdown the district. Read more at NBC10 Philadelphia.

Long term civil rights stalwart and professor, John Brittain, was nice enough to share his break down of Fisher v. Texas with us today. As many of you know, John has been involved in one way or another with almost every major education case dealing with race over the past few decades. Nearest to my heart, he helped start and finish the ground breaking litigation in Sheff v. O'Niell, in which the Connecticut Supreme Court found that de facto school segregation violates the state constitution. As the former chief counsel to the Lawyers' Committee for Civil Rights, he also played a crucial role in various other affirmative actin and education cases. After the Lawyers' Committee, he returned to the academy, but with his free time continues to play an important role in litigation and policy.

John's takeaway point from the decision in Fisher are as follows:

The
decision reaffirms the holistic use of race in the admissions process, at
least until the Fifth Circuit Court of Appeals rules on the case after
remand. See Gratz v. Bollinger,539 U. S. 244
(2003), andGrutter v. Bollinger, 539 U. S. 306 (2003). The Supreme Court punted the case back
to the lower courts on a technicality, deliberately sidestepping the constitutionality
of affirmative action. The value of
expanding opportunity for all with a fair shot to attend colleges and
universities lives on.

At
stake was how much should courts afford deference to universities in
reviewing affirmative action policies?
It is indeed still “proper” for courts to grant “some …
deference” to the university’s “educational
judgment” “that a diverse student body” “is essential” to “serv[ing] its educational goals.” Fisher, slip op. at 9 (internal
citations omitted) (emphasis added).
Under the strict scrutiny standard, a government agency must show
that the use of race satisfied a compelling interest (the goals), and the means
to accomplish the goals were narrowly tailored with the least restrictive
methods.

The
lower court erred in “not apply[ing] the correct standard of strict
scrutiny.” Fisher, slip op.
at 1-2. Once the university “establishe[s]
that its goal of diversity is consistent with strict scrutiny, it has the
burden of proving that the “means chosen by the [u]niversity … are
[necessary, and] narrowly tailored to that goal.” Here on the mean part of the strict
scrutiny test, “the [u]niversity receives no deference” and “it is
for the courts to ensure that [this burden has been met].” Fisher, slip op. at 10 (internal
quotation marks omitted) (emphasis added).

While
the university does not have to “exhaust[] … every conceivable race-neutral
alternative,” the courts cannot simply adopt the “university’s good faith
consideration of workable race-neutral alternatives.” Fisher, slip op. at 10 (internal
quotation marks omitted). “The …
court must … be satisfied that no [available] workable race-neutral” means
would accomplish the university’s objectives. “If a nonracial approach … could promote
the substantial interest about as well and at tolerable administrative
expense, then the university may not consider race.” Fisher, slip op. at 11 (internal
quotation marks and citations omitted).

Although
in the past the Court has declared that strict scrutiny “must not be
strict in theory, but fatal in fact,” Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 227 (1995),
the Court coined an additional moniker in Fisher, that it “must not be strict in theory but feeble
in fact.” Fisher, slip op.
at 13 (emphasis added).

Justice
Scalia concurred because the constitutionality of affirmative action was
not at issue. Fisher, slip
op. at 1 (Scalia, J., concurring).

Justice
Thomas concurred but also added in a twenty-page opinion on the merits of
the case why the government’s use of race-based classifications in education is always prohibited. Fisher, slip op. at passim
(Thomas, J., concurring).

Justice
Ginsburg dissented and would have upheld the lower court’s decision – accepting the university’s good faith in its
goals for diversity and insofar that race-neutral
means would not work – as satisfying the commands of Justice Powell in Bakke and the Court in Grutter. Fisher, slip op. at passim
(Ginsburg, J., dissenting).

The
Court could have simply held months ago, as it concluded on June 24, 2013,
“that the judgment is vacated, and the case is remanded to the United
States Court of Appeals for the Fifth Circuit for further proceedings in
light of Grutter, Gratz and Regents of Univ. of
Cal. v. Bakke, 438 U. S. 265 (1978).”

As most know by know, the Supreme Court struck down section 4 of the Voting Rights Act yesterday in Shelby County v. Holder. That section's formula defines which states and jurisdictions must submit voting changes to the Department of Justice for preclearance. The preclearance process ensures that potentially discriminatory changes in voting laws are reviewed and revised before they go into effect. As a result of the Court's decision, there are no longer any jurisdictions subject to preclearance.

This is a big deal for many school districts. School board elections and racial equity go hand in hand. In fact, the effectiveness of school desegregation orders was often as much a product of school board elections as it was court orders. Likewise, current efforts at voluntary desegregation and diversity easily shift from one school board election cycle to the next, as seen so obviously during the last 6 years of elections in Raliegh, NC. The saving grace in so many of these instances was that changes in school board election procedures (poling places, single member districts v. at large districts, district boundaries) in covered jurisdictions (mostly the South) had to be cleared through DOJ. This outside check was instrumental in allowing African Americans and other minorities to get a fair shot at electing the school board, which meant fair representation on the board. That check is now gone. To be clear, citizens still have the right to sue under section 2 of the Voting Rights Act, but the burden of demonstrating a violation now falls on individual, whereas the burden of proving fairness once fell on the state and local jurisdictions. Only time will tell what this means for desegregation, diversity and voluntary integration in the South, but I know it makes a lot of people nervous.

The Court's long awaited opinion in Fisher v. Texas overshadowed most everything else in legal news yesterday, but lest we forget the Court also decided Vance v. Ball State University. For the most part, Vance is an employment case that just happens to arise in the context of higher education. But since a lot of employment cases just happen to happen in schools, it is worth noting. The issue before the Court was what type of employees fall in the category of "supervisor." The meaning of supervisor is important under Title VII cases, as it dictates the employer's liability in harassment cases. The Court explained:

Under Title VII, an employer’s liability for workplace harassment maydepend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that theemployer provided. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765.

In short, "An employee is a 'supervisor' for purposes of vicarious liability under Title VII only if he or she is empowered by the employer totake tangible employment actions against the victim." The Court's holding was at odds with the EEOC's interpretation, as well as that of the some courts of appeals.

As indicated in my first post, the Court neither
upheld nor struck down the Texas plan, but rather said the lower court was too
deferential in reviewing Texas' admission policy. Thus, the lower cout must take another more rigorous review of the plan. Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action. But many, if not most, affirmative action advocates would have
expected much worse, particularly if they knew Kennedy would write the majority opinion. With Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Kennedy.

The final opinion, moreover, was not even close. It was 7-1 in overturning the court of appeals and sending it back. That Sotomayor and Breyer signed onto the majority opinion, and only
Ginsberg dissented, sends a different message than one would have expected with Kennedy in the majority: Fisher is not the end of affirmative action in higher education. Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion. This suggests a lot of jockeying behind close doors to save affirmative action in higher education, but in an indirect way.

My best guess in reading the opinion is that initial vote as to whether to overrule
Grutter (even though the Court says that was not before it) and/or strike down the Texas plan on its facts was 4-4, with Kennedy in the dissent, which was my best case scenario heading into the case. This 4-4 initial vote is a relatively solid thesis now. In the case of a 4-4 tie, the lower court would
have been upheld and nothing at all would have changed. This clearly would have incensed the 4 most conservative members of the Court. And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either. My hope and intuition was that he would hate the end of affirmative action more than the continuation of the status quo. But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position: join the majority and bring 2 dissenting liberals with him, so that he could write the majority. This had the effect of putting Scalia and
Thomas in the disgruntled concurring camp, rather than squarely in control of the majority.

And that is how sausage and Supreme Court opinions are made (I assume, since I know nothing of either).

This morning the Supreme Court decided Fisher v. University of Texas, a case dealing with the consideration of race in higher education admissions. The Court neither struck down nor upheld the Texas admissions policy. Instead, it held that the lower court afforded the University too much deference in reviewing this policy. Thus, the Court remanded the case for further, more stringent review. As a result, the Court did not get into the facts of whether Texas' plan is constitutional and did not offer any new specific guidelines for other universities. The Court, at best, expressed one reocurring them: that the consideration of race must be "necessary," meaning that the University's goals could not be achieved with other reasonably available race-neutral alternatives. This, however, is not new.

So what does all of this mean? First, the ability to consider race in university admissions survives. Most notably, the Court refrained from overturning Grutter v. Bollinger and said it took Grutter, along with Gratz v. Bollinger and Bakke v. Regents, "as given." Second, the Fisher case is not over and may well make it back to the Supreme Court at a future date.

NPR reports today on UCLA's experience after California's 1996 ban on affirmative action as an admissions criteria in higher education. In 2006, out of UCLA's freshman class of 5,000 students, 96 were African-American. UCLA tried using other criteria to create diversity, such as considering whether students were the first in their families to attend college, but that criteria got complicated too. Read more at NPR.